Memorandum Points and Authorities

Cal. Super. - 6th Dist.February 15, 2019

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Electronically Filed Jeffrey D. Skinner (Bar N0. 239214) by SUPerior court 0f CA, SCHIFF HARDIN LLP County of Santa Clara, 4 Embarcadero Center, Suite 1350 on 9/9/2020 12:46 PM san FranCiSCOa CA 941 11 Reviewed By: S. Alvarez Telephone: (415) 901-8700 Facsimile: (415) 901-8701 Easel“ 9?:{3333883 JSkinner@schiffhardin.com nve Ope' Attorneysfor Defendants Apple Inc. and Purchasing Power LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA FIRST AMERICAN SPECIALTY Case No. 19CV343284 INSURANCE COMPANY, MEMORANDUM OF POINTS AND Plaintiff, AUTHORITIES IN SUPPORT OF DEFENDANT APPLE INC.’S MOTION V. TO COMPEL RESPONSES TO REQUESTS FOR PRODUCTION, FORM APPLE INC., a California Corporation, INTERROGATORIES, AND SPECIAL PURCHASING POWER LLC, a Georgia INTERROGATORIES, AND FOR limited liability company, and DOES 1 t0 20, SANCTIONS Inclusive Date: Defendants. Time: 9:00 am. Dept: 21 Judge: Hon. Thang N. Barrett Complaint Filed: February 15, 2019 Trial Date: None Set INTRODUCTION Plaintiff First American Specialty Insurance Company (“First American”) filed this lawsuit against Apple Inc. (“Apple”) and Purchasing Power LLC 0n February 15, 2019. First American alleges that an Apple iPhone caused a residential fire in San Jose in 2016 purportedly resulting in $234,000.00 0f damages. Since filing suit, First American has largely failed t0 prosecute this action at all. Apple served requests for production, form interrogatories, and special interrogatories 0n First American on April 17, 2020. First American has neither responded t0 this discovery nor requested an extension 0f time t0 d0 so, despite multiple inquiries from Apple’s counsel about the MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT APPLE INC.’S MOTION TO COMPEL, AND FOR SANCTIONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 status 0f those responses. Accordingly, Apple now moves this Court for an Order compelling responses t0 its discovery requests and production 0f all responsive documents. PROCEDURAL BACKGROUND First American filed this lawsuit 0n February 15, 2019, and filed the operative amended complaint 0n May 24, 2019. (Decl. ofJeflrey D. Skinner in Supp. ofMoz‘. t0 Compel Resps. t0 Reqs. For Produc., Form Interrogs., and Special Interrogs., and for Sanctions (Sept. 3, 2020) (“Skinner Decl.,”), 1] 2.) Apple was served with process 0n June 24, 2019; this was the first notice t0 Apple 0f the alleged 2016 fire. (Ibid) Apple answered 0n July 23, 2019. (Id, 1] 3.) A central evidentiary issue in this action is that First American failed t0 preserve the fire scene 0r the alleged iPhone that it claims caused the fire. (Id., 1] 6, EX. 5.) Beginning in 2019, Apple made multiple requests that First American voluntarily dismiss the case because it had not preserved the fire scene 0r the alleged iPhone, but First American and its counsel did not respond t0 any 0f those requests. (161., 1] 6, EXS. 4-5.) On April 17, 2020, Apple served its first set 0f written discovery 0n First American, including form and special interrogatories and requests for production. (161., 1] 4. EXS. 1-3.) Among other things, this discovery sought information about First American’s failure t0 preserve the fire scene and the alleged iPhone. (Ibid) First American’s responses were due by May 18. (161., 1] 5.) Because n0 communication from First American’s counsel had been received about the above-captioned case for over nine months despite multiple attempts t0 contact him by e-mail, telephone, and U.S. mail, counsel for Apple sent an e-mail t0 First American’s counsel 0n May 18 t0 inquire into the status 0f discovery. (Id, 1] 6 & EX. 4.) First American’s counsel responded by e-mail 0n May 19, stating, among other things, that he had not “paid the attention t0 the case that it perhaps deserves,” he would “get [counsel] written discovery responses as son [sic] as I can,” and that he would “discuss with the client the manifold issues you raise about the ultimate Viability 0f the case.” (Ibid.) -2- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT APPLE INC.’S MOTION TO COMPEL, AND FOR SANCTIONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Nearly two months later, 0n July 17, First American still had not served any responses, so Apple’s counsel sent another e-mail t0 again inquire about the status 0f the discovery responses. (Ibid.) First American’s counsel responded 0n July 17 stating that he was “working 0n the discovery responses” and asked Apple’s counsel t0 “[p]lease call me 0n Monday.” (Ibid.) Apple’s counsel called First American’s counsel as requested 0n July 20 but was sent t0 voicemail and left a message. Apple’s counsel also sent an e-mail 0n July 20 asking t0 set up a time certain for a call. (1d,, W 6-7 & EX. 4.) First American’s counsel did not respond t0 the voicemail 0r the e-mail. (Ibid.) Still having not received the responses, Apple’s counsel sent yet another e-mail 0n August 4 t0 inquire about the status 0f the responses and t0 inform First American’s counsel that a motion t0 compel would have t0 be filed if responses were not received by August 7. (161., 1] 6 & EX. 4.) First American’s counsel has not responded. (Id., 1] 7.) First American has provided n0 responses whatsoever t0 Apple’s written discovery, which are now almost four months overdue. (Id., 1] 5.) Despite refusing t0 communicate with Apple’s counsel about the responses since July 17, First American’s attorney appeared at the case management conference held in the above-captioned action 0n August 4. (Id, 1] 7.) ARGUMENT I. Legal Standard The standard for discovery in California is broad; information is discoverable if it is relevant 0r reasonably calculated t0 lead t0 the discovery 0f admissible evidence. (CCP §2017.010.) California courts construe the discovery statutes broadly t0 uphold the right t0 discovery wherever possible. (Flagship Theatres 0f Palm Desert, LLC v. Century Theatres, Inc. (201 1) 198 Cal.App.4th 1366, 1383 [131 Cal.Rptr.3d 519].) “Disclosure is a matter 0f right unless statutory 0r public policy considerations clearly prohibit it. Even in those instances wherein the statute requires a showing 0f good cause, that showing must be liberally construed.” (Greyhound Corp. v. Super. Court (1961) 56 Cal.2d 355, 378 [15 Cal.Rptr. 90] [emphasis added], superseded by statute 0n other grounds as stated in Dowden v. Super. Court (1999) 73 Cal.App.4th 126, 131-132 [86 Cal.Rptr.2d _ 3 _ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT APPLE INC.’S MOTION TO COMPEL, AND FOR SANCTIONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 180].) “California’s pretrial discovery procedures are designed t0 minimize the opportunities for fabrication and forgetfulness, and t0 eliminate the need for guesswork about the other side’s evidence, with all doubts about discovery are resolved in favor 0f disclosure.” (Glenfed Dev. Corp. v. Super. Court (1997) 53 Cal.App.4th 1113, 1119 [62 Cal.Rptr.2d 195] [emphasis added].) A party seeking discovery may move t0 compel further responses t0 interrogatories and requests for production when the receiving party fails t0 timely respond t0 the demands. (CCP §§ 2030.290(b); 2031.300(b).) When a party fails t0 timely respond t0 interrogatories and requests for production, it also waives any objection t0 the discovery, including objections based 0n privilege 0r 0n the protection for work product. (CCP §§ 2030.290(a); 203 1 .300(a).) Where, as here, a party has failed t0 respond t0 discovery entirely, n0 separate statement is required in support 0f a discovery motion. (Cal. R. Ct. 3.1345(b)(1).) Additionally, there is n0 45- day time limit t0 make such a motion when a party has failed t0 respond t0 discovery at all. (Sinaiko Healthcare Consulting, Inc. v. Pac. Healthcare Consultants (2007) 148 Cal.App.4th 390, 41 1.) II. The Court Should Compel Production 0f the Long-Overdue Discoverv Responses And Preclude First American from Asserting Anv Obiections. First American has failed t0 provide any responses t0 Apple’s written discovery requests, which were due 0n May 18, 2020. Apple seeks basic discovery t0 which it plainly is entitled. First American’s counsel has provided n0 reason for the delay in responding 0r even a timeline by which First American will respond. (Skinner Decl., EX. 4.) Even though First American’s counsel appeared at the Case Management Conference in this matter 0n August 4, as 0f at least July 20, First American’s counsel has ceased responding t0 e-mails and a voicemail from Apple’s counsel. First American’s refusal t0 provide discovery should not be permitted by the Court. Apple seeks an order compelling responses t0 this discovery and precluding First American from asserting any objections in its responses. The CCP makes clear that, by failing t0 timely serve responses, First American has waived any objections as a matter 0f law, including those based 0n privilege 0r work product. (CCP §§ 2030.290(a); 2031.300(a).) Allowing First American t0 assert untimely objections t0 the discovery now being compelled would only cause further delay, as it _ 4 _ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT APPLE INC.’S MOTION TO COMPEL, AND FOR SANCTIONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 could potentially require Apple t0 move t0 compel again if First American’s almost-four-month-late responses assert improper objections. Apple must be permitted t0 conduct discovery in this action t0 learn the bases for First American’s claims and t0 use that evidence in support 0f a dispositive motion. Discovery is the bedrock 0f the judicial process, and First American’s continued dilatory tactics merely serve t0 delay, encumber, and otherwise cause prejudice t0 Apple’s defense 0f this action. III. Sanctions Are Appropriate Against First American. Apple is entitled t0 recover its attorney’s fees and costs in preparing this motion t0 force the Guild t0 comply with its discovery obligations. CCP §§ 2030.290(b) and 2031.300(b) each provides that “the party propounding the [written discovery] may move for an order compelling response t0 the [written discovery].” Sections 2030.290(0) and 2031.300(0), in turn, provide that “[t]he court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, 0r attorney who unsuccessfully opposes a motion t0 compel a response ..., unless it finds that the one subject t0 the sanction acted with substantial justification 0r that other circumstances make the imposition 0f the sanction unjust.” Absent substantial justification 0r other circumstances making imposition 0f monetary sanctions unjust, the trial court is required t0 impose a monetary sanction 0n a party who unsuccessfully opposes a motion t0 compel responses. (See Matteo Forge, Inc. v. Arthur Young & C0. (1990) 223 Cal.App.3d 1429, 1436 [273 Cal.Rptr. 262].) Even if First American does not oppose this motion, the Court still should impose sanctions because the need t0 file this motion at all resulted entirely from First American’s intransigence and refusal t0 communicate with Apple. (See Cal. R. Ct. 3.1348(a).) Sanctions are justified here. As explained in Part H, supra at pp. 3-5, First American has failed t0 serve any discovery responses 0r produce any documents despite repeated requests from Apple. Indeed, by at least July 20, First American had stopped responding t0 Apple’s communications altogether. There is n0 substantial justification for the Guild’s failure t0 provide the requested discovery here. Apple seeks the imposition 0f sanctions against First American for the costs and attorney’s fees incurred in preparing this motion, in an amount 0f not less than $1,272.50. (Skinner Decl., _ 5 _ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT APPLE INC.’S MOTION TO COMPEL, AND FOR SANCTIONS 11 9.) Substantial time and effort by undersigned counsel went into preparing this motion and the supporting papers. (Ibid) The amount sought by Apple is substantially less than that actually incurred in the preparation and drafting 0f this motion and the supporting papers. (Ibid.) CONCLUSION For the reasons stated above, the Court should compel First American t0 respond without objection t0 Apple’s First Requests for Production, First Set 0f Form Interrogatories, and First Set of Special Interrogatories, as well as produce any documents responsive t0 the Requests for Production, within fourteen (14) days 0f entry 0f the order. The Court also should sanction First 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 American in an amount 0f not less than $1,272.50. DATED: September 9, 2020 Respectfully submitted, Jeffrey D. Skinner Schiff Hardin LLP Attorneyfor Defendant Apple Inc. and Purchasing Power LLC -6- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT APPLE INC.’S MOTION TO COMPEL, AND FOR SANCTIONS